Land in the Eastern Province- Politics, Policy and Conflict

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Land in the Eastern Province

Politics, Policy and Conflict

Bhavani Fonseka and Mirak Raheem

Centre for Policy Alternatives

May 2010


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The principle authors of the report are Bhavani Fonseka and Mirak Raheem. The authors acknowledge the as-

sistance provided by Chandula Kumbukage, Thilini Peiris, Thenmozhy Kugamourthy and Nigel Nugawela at CPAfor their contribution in compiling the research, and by Sanjana Hattotuwa for formatting the report. Theresearchers are indebted to Dr. Paikiasothy Saravanamuttu for the comments and feedback given during the

writing and editing of this report.

This research would not have been possible if not for the assistance and support provided by all our field part-

ners and local actors in the East and elsewhere who for several years have supported CPA to document and

research land issues and related topics in Sri Lanka. These individuals and organisations who for security rea-

sons are not named in this document, provided invaluable insight and information not available in the public

realm, thereby enriching the research and continuously showing diverse and distinct angles to the cases and

issues documented in this report.

The Centre for Policy Alternatives (CPA) is an independent, non-partisan organization that focuses primarily onissues of governance and conflict resolution. Formed in 1996 in the firm belief that the vital contribution of civil

society to the public policy debate is in need of strengthening, CPA is committed to programmes of research

and advocacy through which public policy is critiqued, alternatives identified and disseminated.

Address: 24/2 28th Lane, off Flower RoadColombo 7

Telephone: +94 (11) 2565304/5/6Fax: +94 (11) 4714460Web www.cpalanka.orgEmail [email protected]

Land in the Eastern Province: Politics, Policy and Conflict | May 2010 Page2
mailto:[email protected]:[email protected]://www.cpalanka.org/http://www.cpalanka.org/


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Map of Sri Lanka



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Table of Contents

Abbreviations p.6Executive Summary p.7Chapter 1 Introduction p.11Section I Policy and Politics of LandChapter 2 Constitutional, Legal and Policy Framework related to land p.13

2.1

Constitutional Framework and Powers over Land 2.1.1 The Central Government, Provincial Council and Land Powers 2.1.2 The Allotment of Land and the National Land Commission 2.2 Legal Framework over Land 2.3 Land Policy 2.4 An Agenda for Reform

Chapter 3 Politicisation and Ethnicisation of Land p.20 3.1 Politicisation 3.2 EthnicisationSection II Ground RealitiesChapter 4 Land Disputes and Conflicts in the East in a Post-War Context p.25 4.1 Conflict and Land 4.2 Causes of the Land Conflict 4.3 Land Grabbing in a Post-War Context: Is it Colonization? 4.3.1 Role of the Police and Military 4.3.2 Role of Religious Actors 4.3.3 Role of Other Actors 4.4 Addressing Land DisputesChapter 5 Accessing Land: Ground Realities and Obstacles p.38 5.1 Military Restrictions on Land Access 5.1.1 Official HSZ 5.1.2 Unofficial HSZs 5.1.3 Other Restricted Areas



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5.1.4 Security Restrictions on Agricultural Lands and Fishing Waters 5.1.5 Military and Police Occupation of Property 5.2 Non-State Actors Impact on Access 5.3 Secondary Occupation by civilians 5.4 Unexploded Ordnance 5.5 Land for Economic Development and Cultural and Environmental Protection 5.5.1 Development 5.5.2 Ecological 5.5.3 Cultural Protection 5.6 Steps Towards Providing Access and Restoring Land Rights

Chapter 6 Land Boundaries: Political and Administrative Implications p.51 6.1 Divisional Secretariat Boundaries 6.2 Divisional Secretaries and Boundary Issues 6.3 Addressing Boundary Issues

Chapter 7 Encroachment and Landlessness in the East: A Commentary p.57 on a New Initiative 7.1 Providing State Land to Those in Need 7.2 The Process under the Landless Initiative 7.3 Key Issues with the Landless Initiative 7.4 Commentary on the Initiative in the Eastern Province 7.5 Strengthening Initiatives to Address LandlessnessChapter 8 Restitution and Compensation p.63 8.1 National and International Framework 8.2 Ground Realities

Chapter 9 Conclusion and Recommendations p.66

APPENDICES

Appendix 1 State Land and AdministrationAppendix 2 Policy Related to LandAppendix 3 Government Actors and Local Government on LandAppendix 4 Publications Produced and Cases Filed by CPA on Land and Related Issues



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Abbreviations

CPA Centre for Policy AlternativesCFA Ceasefire AgreementDS Divisional SecretaryFDL Forward Defence LinesGA Government AgentGS Grama SevakaHSZ High Security ZonesICCPR International Covenant on Civil and Political RightsICESCR International Covenant on Economic, Social and Cultural RightsIDPs Internally Displaced PersonsLTTE Liberation Tigers of Tamil ElamNGOs Non Governmental OrganizationsNIRP National Involuntary Resettlement PolicyNLC National Land CommissionNTPC National Thermal Power CorporationOCR Outer Circular RoadPS Pradeshiya SabhaPLC Provincial Land CommissionerRDA Road Development AuthoritySTF Special Task ForceSEZ Special Economic ZonesTMVP Tamil Makkal Viduthalai Pulikal (Tamil Peoples Liberation Tigers)TNA Tamil National AllianceUDHR Universal Declaration of Human RightsUDA Urban Development AuthorityUXO Unexploded Ordnance



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Executive Summary

Most individuals in Sri Lanka will identify land as a fundamental element that defines their life. Ownership and

control of land, including the location of and the extent of land owned indicate a persons wealth and social

status. The respect that flows from this has a number of other repercussions including access to schools and

marriage prospects. Secure land rights imply economic security and provide surety for loans and thereby facili-

tate income generation and improve livelihoods.

In Sri Lanka, land has been a critical factor in the ethnic conflict that intensified and resulted in the outbreak of a

war that spanned over two decades. State aided land settlement projects under development and irrigation

schemes, the failure in addressing key land and development related issues, violence against particular commu-

nities that resulted in the abandonment of properties, and the establishment ofad hoc security restrictions in

areas all contributed to the increasing tensions that ultimately led to the outbreak of war in Sri Lanka. Over the

course of the war, the land problem was exacerbated by increased displacement of entire communities from

their land, occupation of land belonging to private individuals by the military and LTTE, arbitrary seizure of land

belonging to Muslims by the LTTE in the North and East, the establishment of High Security Zones (HSZ), Spe-

cial Economic Zones (SEZ) and the loss of documentation.

Although discussions on land and related issues and attempts to resolve disputes at a community level did run

concurrent to the conflict and heightened during the Ceasefire Agreement (CFA) and post-tsunami period, there

were no concrete steps taken by the State or any other actor to fully address the root causes of grievances,

provide sustainable alternatives and introduce modalities that could have reduced some of the underlying prob-lems and disputes.

In a post-war context, with the defeat of the LTTE in May 2009, the Government, political parties, civil society

and citizens at large are faced with an unprecedented opportunity to address the root causes of the ethnic con-

flict and long-term grievances faced by different communities. Although there is an opportunity to address a

fundamental issue such as land through looking at both the constitutional, legal and policy framework and the

problems on the ground, very few initiatives have been put forward by the different actors. Nearly a year after the

end of the war, with two national elections held and the current Government enjoying an overwhelming majority

in Parliament, this is clearly the moment to unveil concrete proposals for constitutional and political reform and a

roadmap that introduces changes to the current set up. There are, however, unconfirmed reports of impendingconstitutional reform including changes to the Thirteenth Amendment, the role and powers of the Provincial

Councils. Whether such a framework will guarantee the rights of all citizens or only a certain group or none at all,

are yet to be seen. What is noteworthy is that though a significant time period has passed since the end of the

conflict, there has been little public information, discussion or debate on Government proposals for possible

ways forward. In the current post-war climate, there is no information as to whether the numerous HSZs will be

dismantled; whether all IDPs will be able to return to their land; and furthermore, whether there would be a resti-

tution and compensation policy. The lack of transparency and due process with regard to Government proce-

dure into the post-war context are issues of grave concern and need to be reversed.



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Land and the Eastern Province

The present report explores the complex web of land issues in the Eastern Province. At the outset, CPA states

that this report only highlights key land issues in the Eastern Province in the post war context and is not a his-

toric study of the use, management and control of land in the area. The specific time period in focus spans

2007-2010. It provides an overview of the situation soon after the Eastern Liberation to that of the post war

context in Sri Lanka and the status of land within a three year period.

The Eastern Province was militarily liberated by government forces in 2007, following which the region has seen

a host of developments related to land. The military liberation of the East and the resulting process of normalisa-

tion have provided the context for the return of the displaced and land reclamation, the provision of resettle-

ment, reconstruction and development assistance by humanitarian agencies, donors and the Government. Thishas had a dramatic impact on the quality of life for civilians, even while they continue to deal with the long-term

repercussions of the war, including the loss of lives, destruction and damage to property, the loss of livelihoods

and incomes, and the disruption of community ties.

Some of the critical land issues and problems in the Eastern Province and their impact on larger political and

governance issues are highlighted in the report. For instance, access to land is a critical aspect to land use and

control. In the East, security restrictions and military occupation have somewhat curtailed full enjoyment of land

rights. Furthermore, obstacles to accessing land have resulted in disputes and grievances which if left unre-

solved can lead to a multitude of problems. Another complicating factor is the manner in which the subject of

land has been approached by both state and non-state actors to fuel as well as mitigate ethnic tensions, to fa-cilitate development projects and economic growth, to develop particular communities, dispossess and displace

others, establish new administrative divisions and settlements and change ethnic demographics - all of which

have had long term implications.

Land as a highly politicised and ethnicised issue was an underlying cause of the war. The report examines the

post-war context of new land settlements and land grabbing, landlessness, encroachment on state land, illegal

land sales and the implications of the loss or destruction of land documentation in the East. These have all ag-

gravated issues of ownership, access and control of land between land users/owners. There have been reports

of communal violence breaking out as a result of land disputes. There are also sporadic reports of intimidation

and even assaults, indicating the real potential for violence over land disputes. A number of land disputes werereported to CPA some of which were described as land colonization, but these are claims that CPA could not

verify, even though there was a significant level of political and military involvement in some of these cases.

Nonetheless, CPA repeatedly encountered a strong perception among many of the interviewees at the commu-

nity, district and administrative levels of State actors being partial to particular ethnic communities when dealing

with land. Hence, even when the State is acting in good faith in advocating particular policies there is strong

mistrust and fear on the ground. Rather than ignoring these fears the Government needs to ensure greater

transparency, information and participation in order to address these perceptions.

The present report also explores the constitutional, legal and policy framework that governs land in the region.

The issue of land is further compounded by the different levels of government involved - the Centre, province

and district and the powers vested in them. Although the Thirteenth Amendment to the Constitution was intro-



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duced with the goal of devolving powers to the Provincial Councils including in the area of land, as discussed in

the report, the Central Government overrides provincial council decision-making and policy implementation on

land and continues to be the major actor.

Even though the number of ministries, including those dealing with land, has been cut in the current cabinet,

there continue to be multiple actors at the different levels of administration, especially in the case of the Centre

with several departments and authorities overseeing various issues related to land. The lack of progress made in

resolving land disputes and the inability to introduce and amend much needed laws and policies demonstrates

the ineffectiveness and inefficiency of a bureaucracy and a multiplicity of actors with some overlapping functions.

Though CPA has met several government officials who within their limited mandates are attempting to address

the grievances of the communities and land conflicts, a common problem documented by the CPA team is the

inertia and lack of initiative among some senior political appointees and the disturbing trend of the high levels of

politicisation. Though this is not a new phenomenon regarding land and the Eastern Province, the provision of

secure land entitlements and development requires that this systematic problem is addressed without delay. A

fundamental problem is the lack of political will and political imagination to address the ground realities and

grievances of the affected communities and to engage in policy reform.

The report recommends possible solutions to the problems and gaps highlighted. It calls for reform at the

Constitutional, legal and policy levels. While the issue of power sharing and a political solution needs to be ad-

dressed and any solution has to grapple with the subject of land, there are areas which the Government can

move on without delay, including the strengthening of the powers of the Eastern Provincial Council (EPC) and

consulting the EPC on key land related issues. Despite the twenty year lag, it is not too late to constitute the

National Land Commission (NLC) which would strengthen the process of establishing a fair land policy. Develop-

ing a policy framework on land could be advantageous for long term development provided that it ensures

greater transparency and inclusiveness in decision making and formulation of policies. Existing land related leg-

islation has to be amended, including the Land Development Ordinance and Prescription Ordinance. Specificinitiatives to provide land for the landless as discussed in this report or compensation and restitution to those

whose land and property has been affected by the war, need to be strengthened, taking into consideration the

issues on the ground which are set out in the following chapters.

In responding to the problems on the ground, CPA recommends a two-track approach of developing a policy

framework and establishing/strengthening community-oriented mechanisms and processes. Land disputes and

conflicts which have intensified in the post-war context, probably in relation to an increased feeling of personal

security, improved freedom of movement and a greater number of returns, need to be addressed through clarifi-

cation of the legal status of individual cases. This also requires community-oriented and mediated solutions, be

they Land Kachcheris, land task forces or mediation boards/committees.

The Government, political parties and bureaucrats also need to ensure that governance is made more effective

and sensitive to community needs. Existing issues such as the confusion over divisional boundaries for instance

need to be clarified so as to improve administration. In dealing with issues of military restrictions such as high

security zones and occupation of individual properties that obstruct civilian access, there has to be commitment

to review security requirements in the post-war context, and accordingly provide a time line for withdrawal.

There should be rent schemes for continuing occupation and compensation/restitution in the case of permanent

occupation which should be kept to a minimum.

While the cases and issues discussed in the report are very specific to the Eastern Province, these are not iso-lated issues and trends peculiar to the East alone. These issues and trends have resonance in other parts of the



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country, but more so in other conflict affected areas such as the North. The latter is presently going through a

phase of rebuilding and development and will face similar as well as unique problems with land. If the Eastern

model is to be used in the North, best practices and solutions in the East need first to be developed and im-

plemented before they can be replicated elsewhere. For Sri Lanka to move forward in a post war context,

where fundamental grievances including land issues are addressed, there needs to be larger political and

constitutional reform. An underlying theme in the report is that this and the policies and programmes it produces

must be underpinned by a people-centric approach one that is pivotally representative of the needs of the

people in the area. Such a shift will not only address grievances of the affected communities but could also miti-

gate conflict and ethnic tensions.



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Chapter I

Introduction

This report highlights the gaps and shortcomings in the existing Constitutional, Legal and Policy framework, the

practical challenges to accessing land, land disputes and conflicts as well as boundary issues between adminis-

trative divisions and current initiatives addressing landlessness and compensation/restitution. While profiling ex-isting problems in the post-war context, through this report, CPA hopes to increase public understanding of the

nature of the land problem in the East and to provide alternatives and solutions. The report is also meant to in-

crease engagement of the public and policy makers on land issues, to ensure that future initiatives take into

consideration present problems and to contribute toward a rights-based policy framework for land issues.

There are a host of recommendations which can be made with regards to each aspect of the land problem, but

most importantly there has to be a two-fold transformation in approach. Firstly, the need for policy reform has to

be acknowledged. There needs to be full implementation of existing provisions in and amendments to the Con-

stitution and ordinary law, and a comprehensive land policy introduced by the Government setting out State

policy. Secondly, the focus has to shift from national level requirements of the State to a people-centric andcommunity approach. This would ensure more responsive governance and strengthen the Governments initia-

tives on re-building trust between communities, promoting development and strengthening peace in the East

and in the country at large.



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SECTION I

Policy and Politics of Land



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Chapter II

Constitutional, Legal and Policy Framework

This chapter briefly discusses several constitutional and policy related issues which impact, with specific refer-

ence to land in the Eastern Province. The present report demonstrates the complexity of issues related to land

and that a fundamental factor contributing to this complexity is the lack of comprehensive, coherent and clear

constitutional and policy frameworks on land which sets out the Government position on land and its plans for

its use and management. As discussed in this chapter, a fundamental problem related to land in Sri Lanka is the

failure to fully implement the Thirteenth Amendment to the Constitution which was meant to devolve powers

including land powers to the Provincial Councils and the lack of a comprehensive government policy.

The lack of a comprehensive and coherent framework should not be taken to imply that there are no provisions

in the Constitution, laws and policies that focus on land. On the contrary, as the report demonstrates, Sri Lanka

has a rich collection in this regard. What is missing is the clarity on Government plans for the use, management

and control of land. The confusion is further compounded by the contestation of roles of the different levels of

government and the lack of implementation of existing provisions which facilitate greater devolution and partici-

pation, and the respect and protection of rights. The lack of legal reform is an additional area of concern. Laws

pertaining to both state and private land need to be reformed either at the national level as in the case of joint

ownership for grants or with specific reference to the East as in the case of the Prescription Ordinance.

The Government needs to give priority to setting out its policy on land and related topics, spelling out what it

has in mind for state and private land and its plans for fundamental areas such as governance, control, owner-

ship, access and dispute settlement over land. Without this, the problems documented and highlighted in this

report will continue, creating further conflict and ethnic tension. The present focus of the Government seems to

be economic development as indicated in the various policies, plans and programmes discussed briefly in this

section. The priority given to economic development begs the question of how issues such as land, human

rights, rule of law and other key areas will be managed by the present regime and whether key principles of

governance would be sidelined or disregarded in fulfilling the goal of economic development.



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2.1 Constitutional Framework and Powers over LandThis chapter briefly discusses the Constitutional framework, the powers devolved to the provinces and obsta-

cles faced due to the failure to fully implement the Thirteenth Amendment. The Constitution of Sri Lanka does

not provide for the right to land or property, but the Fundamental Rights Chapter has a provision on the individ-

uals right to equality,1 freedom of movement, choice of residence,2 and other rights. The Directive Principles of

State Policy further advocate the realisation by all citizens of an adequate standard of living for themselves and

their families, including adequate food, clothing and housing, and the continuous improvement of living

conditions.3 The cumulative effect of all these provisions may suggest a right not to be arbitrarily denied the

right to land, housing and property.

Reading the above provisions and the existing guarantees provided by the Constitution, it may be interpreted

that the right to land, property and housing fall within the broad definition of equality and other provisions en-

shrined in the Constitution.

2.1.1 The Central Government, Provincial Council and Land

Powers

An on-going area of confusion and contestation is related to the devolution of land powers, or lack thereof from

the Central Government to the Provincial Council. The Thirteenth Amendment was introduced with the objective

of devolving and delegating certain powers of the Central Government to Provincial Councils. The Thirteenth

Amendment sets out the subjects assigned to the Central Government and the Provincial Councils in three lists:(i) the Provincial Council List, which describes the subjects assigned to the Provincial Councils; ( ii) the Reserved

List, which describes the subjects assigned to the Central Government; (iii) the Concurrent List, which describes

the subjects that are assigned to both the Central Government and the Provincial Councils.

The Thirteenth Amendment reserves certain land powers for the Provincial Council. Rights over land, land ten-

ure, transfer and alienation of land, land use, land settlement and land improvement are listed in Appendix II to

the Provincial Council List, Land and Land Settlement. State land continues to be the property of the Republic,

and may be disposed by the Central Government at its discretion and on the advice of the relevant Provincial

Council.4 This means that any alienation of state land must be done under the seal of the President. What is

important to remember is that though state land is the property of the Republic, it is held in trust by the Gov-

ernment for the people.5


1 Article 12(1)

2 Article 14(1)(h)

3 Article 27(2)(d)

4 Land Commission Bill, S.D Nos 26-36/2003

5 Land Commission Bill, S.D Nos 26-36/2003 and Bulankulama and others v. Secretary, Ministry of Industrial Developmentand other, (2000) 2 Sri LR 243


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Even though the Provincial Councils have the power to make decisions on matters that fall within the Provincial

Council List, the Central Government maintains overriding powers over all devolved subjects. This has resulted

in a situation where, despite land, rehabilitation and reconstruction falling within the purview of the Provincial

Councils, in effect, it is the Central Government that makes the final decision on all matters. This is a problem

created by the Thirteenth Amendment where it provides powers for the Central Government to play the pre-

dominant role on issues including on land. Furthermore, the Thirteenth Amendment also states that inter-

provincial projects involving several Provincial Councils come within the purview of the Central Government. In

addition, there are other areas that come under the Central Government. For example, CPA was informed that

major irrigation works also falls under the purview of the Central Government, while minor irrigation works rest

within the purview of the Provincial Councils. This means that major irrigation projects as well as inter-provincial

irrigation projects all come within the purview of the Central Government. This has been the case with the Ma-

haweli River related irrigation. Furthermore, state land is vested with the Central Government and hence deci-

sions related to state lands are made by actors in the Central Government unless provided for as in the case of

Provincial land. For example, powers related to Provincial schemes, which were previously vested with the Land

Commissioner, are vested with the Provincial Land Commissioner. The level of control by the Central Govern-

ment is compounded by the financial dependence of the Provincial Councils on the Central Government. 6 These are some of the examples that demonstrate the extent to which the Central Government plays a critical

role in the governance and control of State land and powers devolved to the Provinces.

The Central Governments failure to empower the Eastern Provincial Council- which is ruled by the governing

alliance and headed by an ally of the Government - particularly on the subject of land, has raised serious ques-

tions as to the commitment and political will of the incumbent in addressing the ethnic conflict. It is yet to be

seen whether the situation will improve with the possibility of constitutional reform in the near future.

2.1.2 The Allotment of Land and the National Land

CommissionThe Thirteenth Amendment determines that where the distribution of allotments of State land occurs, it should

be undertaken on the basis of national ethnic ratios. Distribution of State land should however, avoid disturbing

the demographic patterns of a Province, and should be done in a manner that ensures community cohesive-

ness in settlements. The Amendment further provides that when State land is distributed under various projects,

priority should be given first to those displaced by the project, second, to the landless of the area in which the

project is implemented, and finally to the landless of the Province.

The Appendix of the Provincial Council List establishes a National Land Commission (NLC). The provisions of

the Constitution provide that this body, which will include members of Provincial Councils, will be responsible for

the formulation of the National Land Policy. The National Land Policy will deal with the use of State land. The

purpose of the NLC is to develop national land policy through consultation between multiple actors, including

from the provinces. The Provincial Councils are intended to exercise those powers devolved on them in accor-


6 Pursuant to Article 154R of the Constitution, the Central Government may allocate funds to the Provinces on the recom-mendation of the Finance Commission. The Provincial Councils have no revenue-raising powers of their own under the Con-stitution.


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dance with the National Land Policy formulated by the NLC. The NLC has yet to be established despite the fact

that the Thirteenth Amendment became part of the Constitution in February 1988.7

Since the introduction of the Thirteenth Amendment and the introduction of the Provincial Councils, certain sub-

jects and powers have been devolved. As highlighted in this section, the existing devolution of powers has been

limited, with the Central Government maintaining control in the form of policy decisions and financial manage-

ment. There has also been much debate as to whether the Provincial Council system works and as to whether it

is a necessary in the present day. There are unconfirmed reports of moves by the Government to change the

Provincial Council system and give greater powers to the District by way of introducing District Councils and

other mechanisms such as Jana Sabhas. Though CPA has yet to see any plans in this regard, such moves to

do away with the Provincial Councils and in effect make the Thirteenth Amendment to the Constitution redun-

dant, will raise larger Constitutional, political and governance questions. The Parliamentary Elections held in April

2010 provided the Government of Mahinda Rajapaksa with a sufficiently large majority in Parliament to pass a

Constitutional Amendment and make fundamental changes to the Constitutional framework of Sri Lanka. In the

event that Provincial Councils are done away with and constitutional changes introduced, CPA urges that such

changes are introduced in keeping with fundamental principles of good governance and done so in a transpar-

ent and participatory manner.

2.2 Legal Framework over Land

The Sri Lankan legal framework for land and property rights consists of statutory law, Roman-Dutch Law (which

is the common law of Sri Lanka), and principles of English Common Law. Land and property rights relating to

marital property and inheritance are also subject to Sri Lankas system of personal or customary laws, consistingof the Tesawalamai, Kandyan Law and Muslim Law. These customary laws seek to protect the traditional rights

and customs of religious or ethnic groups.

When focusing on land, it is imperative to examine the governance issues related to the subject. As discussed in

the previous section, although land is a devolved subject under the Thirteenth Amendment to the Constitution,

the Central Government exercises executive control over how state land is alienated and used. It is further com-

plicated by the numerous laws and policies that are relevant to both state and private land, and numerous proc-

esses involved in the various functions of land. Land laws cover both state and private land and Appendix 1 lists

out some of the relevant laws for land in the Eastern province including laws governing ownership, control and

access. Appendix 1 lists out key concerns and gaps and provides suggestions including the amendment of cer-tain laws so as to ensure joint ownership of State land. It recognizes the difficulties in owning and accessing

private lands due to the obstacles created during the conflict, specifically with regard to the Prescription Ordi-

nance.


7 In the Memorandum on Land Issues Arising From the Ethnic Conflict and the Tsunami Disaster, January 2005, CPA rec-ommended that the NLC be established and granted the resources necessary to carry out its mandate. However, in order to

respect the principle of subsidiarity, CPA has proposed that the NLCs role be limited to the formulation of broad nationalpolicies within whose framework provincial and local authorities would have the flexibility to formulate and implement policiesand programmes responsive to local needs.


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2.3 Land PolicyIn addition to various form of legislation, there is also state policy governing land and land-related issues. It has

already been stated previously in this report, that the NLC provided under the Thirteenth Amendment was en-

visaged to formulate national land policy. More than two decades after the passing of the Thirteenth Amend-

ment, the NLC has yet to become reality, resulting in the lack of a comprehensive national land policy in Sri

Lanka. The lack of a national land policy not only impacts land rights and issues in the Eastern Province, as dis-

cussed in the present report, but has an impact nationally. In a post-war context, it is imperative that the Gov-

ernment fully implements all amendments to the Constitution and other laws including the creation of the NLC.

However, the possibility of constitutional reform, including possible changes to or the removal of the Provincial

Councils, inspires uncertainty in these matters. CPA urges the authorities to set a road-map in place to indicate

the future direction of state policy including what plans are in place for land and related issues. Some policies,

including the draft land policy, are briefly described in Appendix 2.

The policies, including the draft land policy discussed in Appendix 2. demonstrates that the present and previ-

ous Governments have introduced various policies to address land issues including land use and management

and involuntary resettlement. There is at present a draft land policy and draft housing policy,8 which if enacted

can provide a guide to what the Government envisages for the future on these issues. Though the above docu-

ments provide a glimpse into how land can be utilized and into the priorities of the Government, these fail to

clearly provide a clear picture of what the present Government has planned for land in Sri Lanka.

The Mahinda Chintana documents of 2005 and 20109 are a guide to plans proposed by the present President

and his government over land and related issues. There is specific mention of the Eastern Province by reference

to the Nagenahira Navodaya or Eastern Revival Programme. In the 2010 document there is frequent reference

to the development projects that were undertaken post Eastern Liberation in July 2007 including the construc-

tion of roads, bridges, schools and hospitals and the assistance provided for agriculture and livelihoods. In many

of the development projects completed and envisaged including the construction and renovation of roads, land

is a critical factor. There is no mention in the 2005 or 2010 documents as to whether it is state or private land

that is to be used for development projects and for providing land to those in need. As highlighted in this report,

land construction in the East has in fact taken place but there are issues with process including discrepancies in

the land acquisition process, transparency and compensation. The 2005 and 20101 policy documents do not

contain specific references of providing land to the landless and the need for a land policy, but both these poli-

cies need to be actualised.

Another factor that needs attention is that as stated in the 2010 document, land and houses will be given to

those who fought in the war. There is specific mention of 50,000 new houses being built under Ranaviru Gam-

mana which is for officers and soldiers in the forces but no mention of how the recipients will be selected and

where the land will be situated. This report documents several cases where local communities fear changes to

demographics through new settlements taking place. In some cases these changes are due to state sponsor-

ship or through the intervention and influence of political actors and key administrative officials. The Ranaviru

Gammana further exacerbates these fears and it is crucial that the Government provide information on the pro-

gramme, including the nature of land being provided as well as ensure transparency in the selection process.


8 Please refer to Appendix 2 for more information

9 Please refer to Appendix 2 for more information


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Agriculture and livelihoods are key aspects of the 2005 and 2010 documents. Likewise, the Eastern Revival

Programme. According to the 2010 document, under the Mahinda Chintana project of giving agricultural land to

100,000 farmers, 20,195 allotments have already been given away and permits have been issued for a further

32,063 allotments, while other documents have been issued to yet another 38,277 farmers. The document fur-

ther adds that agricultural land will be given to 100,000 farming families in the Northern and Eastern Provinces

though no information is currently available on whether the land would be state or private land. Nor does it men-

tion any selection criteria.

The Eastern Revival programme sheds more light on plans for the Eastern Province. According to the Eastern

Revival there are three areas for the period 2007-2010. They are as follows: 10

Restoring and guaranteeing socio-economic and personal stability and safety to the people and com-

munities of the Region through resettlement of displaced persons, building reconciliation, and consoli-

dating the capacities and fundamental rights and responsibilities of all people and institutions.

Revitalizing basic livelihoods through revival and expansion of the productive sectors and the regional

economy.

Improving economic infrastructure, strengthening social infrastructure and fostering social services and

development of human settlements and improving the internal and internal connectivity of the Region.

The above areas and the programmes implemented to date in the East demonstrate that economic develop-

ment and revival are benchmarks influencing Government programmes and policy. The recent creation of the

Economic Development Ministry, which includes previous ministries such as the Ministry of Nation Building and

the Ministry of Tourism and headed by Basil Rajapaksa, further demonstrates the importance given to economic

development in the present government.11 Though it is too early to comment on plans and programmes of the

new ministry, the amalgamation of several key ministries in the previous government, the weight given to devel-

opment by the present government and the fact that it is headed by the brother of the President and a key ar-

chitect of the policies, plans and programmes of the Mahinda Rajapaksa administration are indicators of the

Governments prioritisation of economic development. While CPA recognises that economic development and

revival are important, they should not be at the cost of peoples rights, the absence of a due process and the

centralisation of decision making and powers. The Government should take into account issues on the ground

and formulate a national land policy which is based on a rights framework and the needs of local communities.

2.4 An Agenda for ReformAs this chapter reveals, there are several problems and gaps with the constitutional and policy framework re-

lated to land in Sri Lanka. Although the Provincial Councils do have their inherent flaws and weaknesses, a key

problem is that the Provincial Councils cannot enjoy complete devolution of powers since the Central Govern-

ment retains power and control. Any future proposals need to address this issue and ensure that there is full


10 Eastern Revival, Three Year Master Plan, http://www.neweast.lk/3year/introduction.html#policy

11 (Daily News, President assigns subjects, functions of Ministers, May 5 2010). In addition to the several ministries that

come under the Economic Development Ministry, all regional development programmes including District Development pro-grammes and the Board of Investment which were previously under the Enterprise and Investment Promotion Ministry alsofall within the new ministry.
http://www.neweast.lk/http://www.neweast.lk/http://www.neweast.lk/


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devolution, not a half-hearted attempt that fails to address the grievances of the communities. CPA recom-

mends that consultations are conducted across the country and among relevant stakeholders to ensure that

any process of constitutional change is participatory, transparent and inclusive. CPA also recommends that land

is fully devolved to the Provincial Councils.

CPA notes that by fully devolving land powers to the Provincial Councils as provided in the Thirteenth Amend-

ment, responsibilities and powers over land are taken closer to the people. An additional, important factor in

having another tier of governance and not relying solely on the authority of the Central Government is the

checks and balances thereby provided to minimise the abuse of power. For example, decisions pertaining to

land cannot be unilaterally made by the Central Government but must be done in consultation with Provincial

Councils. For example, when the Land Ordinance Bill 2009 was present in Parliament by the then Land Minister

Jeevan Kumaratunga, an objection was raised by JVP MP Anura Kumara Dissanayake that the Bill was not dis-

cussed and approved by the relevant Provincial Councils.12 In this context it must be noted that the Provincial

Council also has a duty to act responsibly and in a transparent manner, including when dealing with land issues,

so as to avoid repeating the mistakes of the Central Government.

Further, there needs to be a land policy that takes on board the needs of the people and one which is therefore

located within a rights framework. The full implementation of the Thirteenth Amendment will ensure the constitu-

tion of the NLC, which in turn could facilitate the formulation of national land policy. As highlighted in this report,

current government policy seems to give priority to economic development over other issues and this seems to

be the trend on land. While economic development is critical in moving forward to a post conflict setting, other

areas highlighted in the report also needs to be given consideration.

Finally, the problems documented in this report highlight the need for reform. Land reform, be it constitutional,

legal or policy, is necessary to move forward towards peace, reconciliation and national unity. This report rec-

ommends several steps that need to be taken to ensure that success in these areas is sustained and effective

and that grievances of the communities are addressed.

Land in the Eastern Province: Politics, Policy and Conflict | May 2010 Page1912 Daily News, Land Ordinance Bill before Standing Committee, January 23 2009


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Chapter III

Politicisation and Ethnicisation of Land Problems

Land disputes are by no means unique to the Eastern Province. In fact, land disputes may be the most common

issue for litigation in the Sri Lankan legal system, in particular, cases of intestacy and inheritance between family

members and associates, as well as boundary disputes between neighbours. In the Eastern province, land has

an overt political and ethnic dimension. With the intensification of the ethno-political conflict during the post-

independence years, the issue of land in the East became a sensitive issue with charges of State colonisation,

communal riots and land settlements as well as demographic changes. These tensions were exacerbated dur-

ing the war, both in terms of existing disputes and the emergence of new problems such as displacement and

violence over the control of and access to land. This report attempts to document some of the different and dis-

tinct land conflicts and disputes. It will highlight key trends, demonstrating that issues such as politicisation and

ethnicisation are critical factors in land issues.

3.1 PoliticisationA fundamental component of land is its relationship to political and constitutional arrangements. As discussed in

this report, land is a devolved subject under the Thirteenth Amendment to the Constitution, resulting in both the

Central and Provincial Governments playing a role. Furthermore, land is a central issue in the struggle for power

between the Centre and the Province. Land along with police powers continues to be one of the sensitive sub-

jects which the Central Government is refusing to hand over to the Eastern Provincial Council. Politicians, includ-

ing those who have entered Parliament from the districts of the East, also attempt to play a dominant role and

can influence land related issues either through the cabinet, the relevant ministry or department, or at the district

level.

There are also district level actors and local authorities who play a crucial role in land administration (discussed

in Appendix 3). As a result, in many instances there are a host of actors at the different levels of government

who play a role and may further complicate the issue. Several of the cases documented in this report, highlight

the role of political actors in influencing and deciding land projects and policy including resettlement drives and

assistance schemes.

The escalation of violence in 2006/7 resulted in the displacement of tens of thousands of people in the Eastern

province and a significant number resettled in the last few years. CPA has in previous reports commented on the

resettlement drives, noting the desire of the displaced to return, while raising questions as to whether the rights



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of IDPs were violated during the process.13 These drives have also raised a question on the status of the land of

those affected. Those displaced from their homes situated in the HSZ in Sampur (discussed in detail later in the

report) returned to their districts of origin but were unable to return to their own land due to restrictions as a re-

sult of the HSZ. Several administrative and political actors have been involved with this group of IDPs and their

land, including the Eastern Provincial Council, the Trincomalee Government Agent, and local members of Par-

liament. The various actors who were involved and interested in the resettlement process and continue to be

involved in the HSZ and SEZ in Sampur demonstrate the political interest given to the issue.

It is difficult to talk about the administration of the East without referring to the military. In addition to the current

Trincomalee GA, the current Governor of the Eastern Province and the former Resettlement Authority official for

the East are retired navy personnel, attesting to the critical decision-making role in resettlement and land issues

in the region. The increase in military actors responsible for governance and development in the East is a trend

witnessed after the liberation of the East in 2007 and now evident in the North.14 Politicisation consequently re-

fers to the roles and actions of elected officials as well as former military officers who have been appointed to

administrative positions. As a consequence, the culture of politics and governance could change accordingly.

This report also highlights several land cases where those displaced previously have returned to claim their land

but face problems as others are occupying the respective land as seen with the Irakkandy case in Kuchchaveli

in the district of Trincomalee; boundary disputes in the Kathankudy-Arayampathy Divisions in Batticaloa; and the

fencing off of land in areas in Muttur. The latter are some of the cases discussed later in the report and the

cases themselves demonstrates the complexity of land in the Eastern Province including the degree of politicisa-

tion and ethnicisation that could fundamentally change land ownership and ethnic demographics.

While it does not necessarily follow that every land dispute between members of different ethnic communities is

presented and pursued in exclusively or even predominantly ethnic terms, there is a higher potential for this to

be the case in disputes between ethnic communities. Even when the disputants themselves do not necessarily

seek to use the communal card; politicians, State officials and political activists may do so. The refusal of the

police to take down a complaint when members from the Tamil speaking communities want to complain about

obstruction and assault by Sinhalese farmers adds an ethnic dimension, as does the refusal by a Muslim Divi-

sional Secretary to give a hearing to Sinhala returnees attempting to reclaim property they left in the 1980s. Like

in any other area in the East, political actors are involved in land issues through either pushing for State officials

to grant land to individuals or companies or through highlighting cases of dispossession. The history of the eth-

nic conflict adds a complicating aspect to this involvement as minor disputes may get magnified and incorpo-

rated into a sweeping chronology of events documenting discrimination, suffering and violence. The involvement

of high profile political actors, including the Central Government and the Provincial Council, as well as politicians

representing each of the ethnic communities increases the profile of and the stakes in the case. Even within eth-nic communities there is a high potential for politicisation. In particular, cases of disputes between Tamil land

users, one party or both may have appealed previously to the LTTE or the dominant Tamil militant group which

would result in greater involvement by powerful political actors.


13 CPA, Bhavani Fonseka and Mirak Raheem,A brief profile of the Trincomalee High Security Zone and other land issues inTrincomalee District, May 2008, CPA, Bhavani Fonseka and Mirak Raheem; Trincomalee High Security Zone and SpecialEconomic Zone, September 2009.

14 For example, the Northern Province Governor is Major General G.A Chandrasiri and all resettlement, reconstruction anddevelopment work needs approval from the defence establishment.


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The case above illustrates how politicisation and ethnicisation manifests itself in land disputes.15

3.2 EthnicisationThe ethnicisation of land is seen in several cases in the East and Chapter Six discusses the ethnic dimensions of

administrative divisions in the East. The ethnic tensions and insecurity during the war made this a necessity but

the trend has continued in the post-war context. Therefore in the East, several administrative units are ethnic

based. In these ethnic based administrative units, individuals in most cases reside on either private or state land.

Those residing on state land are dependent on the local Divisional Secretary who has the power to issue per-

mits. Therefore, permits issued in a specific division may be ethnic based, depending on local dynamics and the


15 See a more detailed discussion of the Irakkandy case on pg. 29-30. See statement by R. Sampanthan in Parliament, Oc-

tober 232009.

Case Study: Irakkandy

Irakkandy is presently a largely Muslim village located a few miles North of Nilaveli, in the Kuchchaveli Divi-

sion, Trincomalee. Some of the land in the village is privately owned (deed land) while other residents have

secured permits from the Government. With the intensification of the conflict particularly from 1985 onwards,

the Sinhalese in the village began to flee to Sinhala majority areas including Trincomalee Town, Anurdhapura

and to cities in the Southern Province. During the numerous and short-lived ceasefires, especially in 1994-5,

some of the Sinhala residents visited their village and attempted to secure financial arrangements over their

land with their Muslim and Tamil neighbours. This is at the heart of the current land conflict in Irakkandy-

Valaiuttu. The Muslim and Tamil residents claim that the Sinhalese sold their lands, while the latter claim that

most of these lands were rented out.

Many of those who claim ownership to the land in question are Muslim but there are also a number of Tamils.

Some of them have land ownership documentation, which they claim they obtained through the original

owners handing over their land back to the State after which the DS of Kuchchaveli at the time provided

permits to the land for the new owners. Some of the original Sinhalese owners and their relatives insist that

the DS at the time was acting on behalf of the minorities. This case reveals a high level of ethnicisation of

land issues, which is briefly discussed below, as both parties see the other as representatives of an ethnic

community with the backing of their political representatives.

Soon after the end of the war in May 2009 several Sinhalese returned to the area and attempted to claim

back their property. The DS of Kuchchaveli, the Provincial Land Commissioner (PLC), the GA of Trincomalee

and other politicians have been involved in this particular case. CPA was also informed that the Sinhalese

were encouraged to return and have been provided assistance by politicians in the Central Government and

the GA who is also Sinhalese. The Sinhalese are also provided protection by the Navy and the Police. CPA

was informed that several Muslim politicians have taken up the case of the Muslims in the area. Given theinvolvement of all these political actors and given that the Irakkandy case has also been raised in parliament.

The clear ethnic schisms around the issue of land and the patronage system based on ethnicity are clearly

demonstrated in the Irakkandy case.


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role played by the various actors including local politicians. Though this trend is difficult to prove due to the

complexity of land and administrative issues, and the increased politicisation which has stopped the reporting of

grievances due to the fear of reprisals; CPA notes that the powers given to the Divisional Secretary leaves open

the possibility of permits to be issued to specific ethnic groups over others, increasing the ethnicisation of land

in the East. Although there is space for abuse of the powers given to the Divisional Secretary, CPA also notes

that the office of the Divisional Secretary plays an important role in administrative issues at the local level. There-

fore CPA recommends that powers provided to the Divisional Secretary and other local officials need to contain

checks and balances to avoid abuse.

The ethnicisation of land issues was further highlighted by the 2008 Government initiative to provide state land

to the landless. CPA interviews with both government officials and communities indicated that there were fears

that this new initiative may result in changing ethnic demography in the area by giving land to those outside of

the division and from a different ethnic group. Though there is no evidence to prove this has taken place, the

fears of the different ethnic communities that the new initiative was a tool to undermine other ethnic groups and

change the ethnic composition of certain areas in the East through the distribution land are indicative of the

complex nature of ethnic relations, land and politics in the East.

Ethnicisation or at least charges of ethnicisation under the cover of national security and development are also

made as there is a perception that under these projects the Central Government is planning to facilitate new

Sinhala settlements. The report also captures trends where Sinhala politicians and Buddhist clergy have entered

areas in the East and erected new buildings and fenced off land, intimidating minorities in the area and creating

tensions among the different communities, as well as reinforcing minority fears about the use of land to effect

demographic change. Several cases in the Trincomalee district that are highlighted in this report demonstrates

the role of powerful Sinhalese politicians who in the name of cultural heritage and environmental protection, have

provided support to initiatives by locals, including the Buddhist clergy, to take over state land to build a Buddhist

temple and to fence off the farming land of minorities, creating fears among the minorities in the area that stateland is being used as a tool to introduce new settlements and thwart minority community access and control.

The report also looks at other reported cases of land grabbing by powerful political actors from the Tamil and

Muslim communities in other areas in the East.

Even where the Government is aiming to promote development with an eye towards addressing local needs, it

will have to tackle the issue of perceptions, where development programs are perceived to advantage a particu-

lar constituency or community. While it is too early to comment on these issues and its impact, there could be

serious implications for the future plans for peace, reconciliation and national unity if there is a continuation of

the politicisation and ethnicisation of land. CPA recommends that future reform initiatives should take these is-

sues and trends into consideration as well as ensuring that legislation and policies are formulated that abide bythe key principles and concerns documented in this report.



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Chapter IV

Land Disputes and Conflicts in the Eastern Province in a

Post-War Context

Land is a highly contentious issue in the Eastern Province. As noted earlier there are multiple factors which have

contributed to it being such a highly politicised and ethnicised issue. A series of developments which took place

with regard to land in the East during the post-independence years, particularly relating to land settlement, have

resulted in land being viewed as a root cause for the conflict and the war to which it gave rise. In addition to the

other impacts of the twenty-year old war, civilian use and control over land use has also directly suffered. In ef-

fect, the war complicated and exacerbated existing land issues and even created new problems on the ground,

which has made addressing land issues in the post-war context a highly challenging process.

It needs to be noted that many of these disputes are not new but they are affected by the dynamics of a post-

war situation. A post-war context is most often identified with the return of displaced people and re-

establishment of land control by owners and users. However, the perceptions and suspicions on the one hand,

and on the other, the changes on the ground during the conflict relating to the individual land plots as well as the

space to reclaim land provided by the post-war context, create a heady cocktail for intensifying land disputes. A

post-war context may, in fact, see more overt inter-communal tensions over land as individuals are generally

more able and willing to voice their land claims, but it also offers an opportunity to address these issues pro-

vided there is a concerted effort to approach the problem in a systematic and sensitive manner. While develop-

ing a policy at the Central Government level to handle competing land claims, documentation and landlessness

issues, there has to be a concerted effort to develop mechanisms at the community and divisional level in order

to address and mediate these issues. Given the suspicions and mistrust over land built up over time, there has

to be a concerted effort to deal with the issue of perceptions.

At the outset it needs to be noted that the land conflicts and disputes highlighted in the media and those raised

with CPA during its field visits tended to be those which were highly ethnicised and politicised. It cannot be in-

ferred from the cases below that there are very few disputes between members of the same ethnic community,

or that these disputes do not become politicised. There have been some initiatives to map land claims and con-

flicts. One of the most comprehensive initiatives was undertaken by the Muslim Rights Organisation (MRO) in

2003 to document land owned by Muslim forcibly occupied by Tamils. MRO recorded 14,872 cases covering

some 62,670 acres.16 While such extensive land mapping may not be required nor practical, there has to an

effort to understand the extent and nature of the current land problem in order to design an effective response.


16 Muslim Rights Organisation, Register of Muslim Lands Forcibly Occupied By the Tamils in the Eastern Province of SriLanka, Volume I, November 2003


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4.1 Conflict and Land

Land is widely perceived to be central to the intensification of the ethno-political conflict. In particular, state

sponsored land distribution schemes are seen to be a driving force in the aggravation of tensions and fears of

the minority communities. During its visits to the three districts, CPA repeatedly confronted minority concerns in

the East, particularly the fear that Government is facilitating and supporting schemes which have the hidden

agenda of changing demographics in the area. In contrast, the Sinhala community feels that they do have a right

to land ownership, so the State has an obligation to grant them land and to facilitate those displaced during the

conflict to reclaim their original land. The tension usually arises over the manner in which land and assistance is

provided, the role of State and political actors in responding to these competing claims and the claim of new

settlers.

Post-independence governments initiated a number of irrigation and land settlement projects in areas including

the East, to provide land and livelihood opportunities for people from across the country. Some of the major

schemes included Gal Oya in what is now Digamadulla District and Allai-Kanthalai in Trincomalee District. For

the Tamil-speaking communities who formed the majority of the population in the East, these government-

sponsored projects were, in turn, viewed as state-driven colonisation projects which favoured the Sinhalese

from outside the Province, and dramatically impacted the demography of the region. Since independence, the

Sinhala population in the East has sharply increased from 20.5 % in 1963 to 24.8% in 1981.17 Accordingly a

widely-held perception among the Tamil and Muslim Communities is that the Government favours the Sinhala

community and under the guise of development is attempting to increase the Sinhala population in the East.

There is an abiding concern that the State is continuing its attempts to provide more land for the Sinhalese in

the Province, even in a post-war context.

For the Sinhala community the granting of land is seen as a positive process aimed at distributing land to the

landless. There is also a perception among the Sinhalese that they are not stealing land from the minorities but

are actually merely re-claiming land which they abandoned centuries ago- especially given the historical sites

and references to the East in historical narratives. Sinhala nationalists point to individual settlement projects of

Tamils and Muslims, as evidence of colonisation by minorities. While these dynamics do not necessarily filter

down at the community level, they fuel animosity and suspicion, especially at the macro-level.

During the conflict, violence was used to establish control over territory by the various armed actors. At the

community level the violence led to significant changes as entire communities were forced into displacement

and/or lost access to their land. Massacres, individual killings, destruction of property, riots and intimidation all

impacted land use and control as well as relations between communities. During the war, many areas in the

East saw an exchange in populations as particular communities fled vulnerable areas and instead moved to

areas which were dominated by their respective community, or even fled to other Provinces. Batticaloa District,

which was home to a small Sinhala population, now has barely a fraction of that community, while towns such

as Ampara which had a small Tamil population are now almost wholly Sinhalese. While in some cases properties

were abandoned and occupied by armed actors or even other civilians, in other instances these individual plots

may lie unoccupied. There were also property sales, sometimes high prices were offered, while in other in-

stances direct intimidation was used to pressurise sales at low prices. In some instances the overall context of

fear and insecurity encouraged individuals who were members of minority communities in particular areas (be


17 Department of Census and Statistics, Special Enumeration, Trincomalee District 2007, October 2007; Department ofCensus and Statistics, Special Enumeration, Batticaloa District 2007, October 2007; Department of Census and Statistics,Special Enumeration, Ampara District 2007, October 2007.


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they Tamil, Sinhala or Muslim) to sell to individuals from the community that formed the majority in that area. In a

post-war context even land sales, especially those lacking documentation, are contested with original owners or

their descendants claiming that there was no land sale or that it was made under duress.

4.2 Causes of the Land ConflictListed below are some of the key challenges which demonstrate how the various administrative, legal and ac-

cess issues contribute to disputes on the ground:

Issues over land documentation: The loss of land documentation means that land users and the

State are unable to prove land ownership. The loss of documentation could be due to a number of rea-

sons such as the individual losing official documents and/or the destruction of official records due to the

war. In addition a common problem with land documentation is that land users may have obtained in-

adequate documentation through lawyers such as declarations that do not amount to legal ownership

or have no documentation at all. This situation may arise out of ignorance and a lack of awareness over

the process of obtaining ownership, including the fact that long-term occupation over generations,

without regularisation amounts to ownership. There is significant room for conflict especially in a context

where land is provided to new users and those who used the land previously but lacked documenta-

tion to prove ownership.

Failures in effective and fair administration: The land documentation problem is complicated by the

role of the authorities, especially if they are ineffective or partial. A significant complaint made to CPA

was that the relevant authorities were not granting land rights despite applications being filed by the

potential land owner and low ranking officers. There have been various claims of corruption and ethnic

partiality in the district administration system which have resulted, in previous cases, in permits orgrants not being issued to particular groups. During the war, effective administration proved difficult for

a number of reasons including low manpower in certain areas, limited movement by officials, the threats

to officials as well as the de facto administrative role played by armed actors. In some instances it is

difficult to identify the principal cause for the failure to provide documentation; whether it was lack of

awareness and gaps in proving ownership by the user or the neglect or lack of interest on the part of

the responsible administrators or even corruption. For instance, several complaints have been report-

edly made to the Batticaloa Human Rights Commission stating that the original deeds in the Batticaloa

Land Registry are either lost or destroyed, but there are fears that this could have been deliberate.18

The restoration of civil administration remains a critical challenge in the post-war context, especially in

areas which were formerly controlled by the LTTE and are being de facto administered by the military.

Landlessness: While a significant proportion of people in the East may occupy a piece of land, they

may not necessarily own it. As noted in this report, there is a population of landless families in the East

who do not have legal titles. Their efforts to secure land may result in disputes either with other land

users or the authorities. Previous owners of land may now find themselves landless due to policies of

the Government which have earmarked the land for other purposes. Alternate land may be provided in

such circumstances but those affected may not necessarily accept these plots due to the fact that they

are not suitable. As a result of State occupation and acquisition of land, there is a population in the East

who may be unable to secure sustainable livelihoods and economic security, that in turn intensifies ex-


18 Veerakesari, Several complaints made to the HRC that original deeds in the land registry purposely lost at destroyed inBatticaloa Co-ordinator, April 21 2010, pg. 14


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isting tension between civilians and the State. In particular DS divisions there is an acute shortage of

available land, hence the only option is to find land in neighbouring DS divisons which may be domi-

nated by another ethnic community. In Ampara, the coastal belt where the majority of Muslims and Ta-

mils live is very densely populated. While in Kalmunai, Muslims has approximately 1,512 persons per sq

km, Padiyathalawa DS has 33 and even Ampara DS has only 168.19 This leads to a situation where

ethnic communities have differing land resources available to them and creates resentment. The Muslim

Community in the East in particular live in some of the most densely populated divisions with limited

land areas, where as Sinhala majority divisions tend to sparsely populated.

War related abandonment or non-usage: Land owners and users were forced to abandon the use

of their land due to the war. The use of direct violence against individuals or community members either

resulted in displacement or communities being unable to access particular areas. Those displaced may

have ended up occupying someone elses land in another area, creating secondary occupation and

thereby creating another land problem. As detailed in the Chapter Six, particular areas were marked off

limits by the armed actors. In the post-war context, some of the restrictions imposed by the military

such as High Security Zones (both official and unofficial) continue to thwart access and are a source of

conflict between those who owned the land and the authorities. The context of insecurity also led to

land sales. In the post-war context, there is contestation as to whether these land sales were fair or

whether they were under duress, especially where there is no official documentation of the sale.

Encroachment: Defined as the illegal occupation and use of either State or private land, encroachment

is a key cause of land conflicts. In certain instances the encroachers may contend that they may have

secured ownership and may even have documentation to prove it. In some instances there are political

and other factors that facilitate encroachment. For example, an irrigation officer informed CPA that there

has been illegal encroachment of land between Maduru Oya and Punnani, System C.20 These farmers

have even been illegally constructing dams in the water ways so as to divert water. In the middle of

2009 officials from the Irrigation Department had reportedly visited the area with the police and had

taken action to remove water pumps but the police was instructed to release these water pumps by a

prominent politician.21 As noted in the Appendix 1, Sri Lankan law grants the rights to long-term en-

croachers on private land and no policy or law has been enacted by the Government which would rec-

ognise the specific circumstances in conflict affected areas which would make prescription inapplicable.

The specific contexts of displacement (especially long-term) and the use of violence against civilians led

to the abandonment of land and secondary occupation. While giving due recognition to the context,

special attention needs to be paid to the competing claims of land ownership and ensure that amicable

settlements are reached in keeping with the legal framework.

Land Grabbing and the involvement of powerful actors: Land grabbing can be carried out by pri-

vate individuals who seize abandoned or even occupied land by chasing away the owners/users, or bymilitant and other armed actors who may use violence and intimidation to secure control over land. Ef-

forts to grab land can take many forms such as financial incentives where high prices are offered for

individual plots; a mix of intimidation of and financial; or where the price offered may either be at or be-

low market but owner prefers to move out due to overall context of fear and uncertainty; or even

through the use direct violence. Armed actors may get involved in land grabbing and in some cases


19 Foundation for Co-Existence, UNHCR, Shahul H. Hasbullah, P. Balasundarampillai and Kalinga Tudor Silva, AddressingRoot Causes of the Conflict: Land Problems in North-East Sri Lanka, November 2005, pg. 33

20 CPA field visit to the area, January 2010

21 Interview with officer from the Irrigation Department, January 2010


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provide the land to communities they are associated with. Hence the LTTE was accused of taking land

from Muslims who had fled and of handing it over to landless Tamil families, while State actors such as

the Army were accused of assisting Sinhala farmers to secure lands previously cultivated by Tamils.22

There are also allegations of land grabbing by the State on the grounds of military necessity, develop-

ment, tourism and land settlement.23 While the State may follow legal processes including land acquisi-

tion this process may amount to a land grab from the perspective of the permit and deed holders, or

long-term users, especially when due process is not adhered to, including providing adequate informa-

tion and alternative options to those affected. This chapter also sets out examples of land grabbing,

where intimidation has been used by key religious and political actors, sometimes with the support of

the police and the military.


22 ICG, Sri Lankas Eastern Province: Land, Development, Conflict, October 2008

23 An example is the Sampur HSZ discussed in this report

Case Study of Irakkandy: The Dynamics of a Land Dispute

The Irakkandy case is illustrative of some of these issues. Irakkandy is presently a predominantly Muslim vil-

lage located a few miles North of Nilaveli, in the Kuchchaveli Division, Trincomalee. Some of the land in thevillage is privately owned (deed land) while other residents have secured permits from the Government. The

adjoining village of Valaiuttu was a mixed village with Sinhalese, Tamils and Muslims. Many of the Sinhalese

claim to be from the Southern Province and had settled in the post-independence period. While there are

some deed lands, there were also some lands distributed under permits.

With the intensification of the conflict particularly from 1985 onwards, the Sinhalese in the village began to

flee to Sinhala majority areas including Trincomalee Town, Anuradhapura and to cities in the Southern Prov-

ince. During the numerous and short-lived ceasefires, especially in 1994-5, some of the Sinhala residents

visited their village and attempted to secure financial arrangements over their land with their Muslim and Ta-

mil neighbours. This is at the heart of the current land conflict in Irakkandy-Valaiuttu. The Muslim and Tamilresidents claim that the Sinhalese sold their lands, while the latter claim that most of these lands were rented

under a lease.

Most of the land in question is permit land which cannot be sold and the only transfers that can take place is

what is provided under the land law of the State. Many of those who claim ownership to the land in question

are Muslim but there are also a number of Tamils. Some of them have land ownership documentation, which

they claim they obtained through the original owners handing their land back to the State after which the DS

of Kuchchaveli at the time provided permits to the land for the new owners. In some cases the land was

given to these individuals as grants under the Jeyabhoomi Scheme signed by the then President of Sri Lanka

Chandrika Bandaranaike Kumaratunga. One of the land owners showed CPA copies of the letter from theoriginal Sinhala land owner giving up his land and the official letters from the DS of Kutchaveli as well as the

land grants, as documentation to prove their ownership. Some of the original Sinhalese owners and their

relatives insist that the DS was acting on behalf of the minorities.

There are other cases where individuals claim to have come to a private arrangement, where money was

exchanged with the Muslim and Tamil claimants insisting that the land was sold to them, and the Sinhalese

who want their land back insisting it was a long-term lease.


30/85

(The case above is based on interviews conducted by CPA in Irakkandy with Muslim residents and Sinhala re-

turnees, government officials and civil society actors in Trincomalee during September and October 2009.)


In these cases, the Sinhalese claim that there is no paperwork, not even a letter, that would suggest such an

exchange and are even claiming money from the current residents citing the benefits from the land, such as the

cultivation of coconut.

The Sinhalese claim that there are a number of up country Tamils who settled on their land during the late

1980s. In addition, the Sinhalese themselves claim to have settled in the village in the post-independence pe-

riod from the Southern province.

Barely a few days after the end of the war, on the 25th of May 2009, a number of Sinhalese attempted to claim

back their properties and a few have even moved back to the village to do so. During CPAs visit in late 2009

they were housed in three public buildings in Valaiuttu until they could get their property back. Most humanitar-

ian agencies have not come forward to give them assistance due to the controversy, but food has been pro-

vided by WFP through the DS According to the Sinhalese who are presently residing in the public building, not

all of them who were previously residents in the area have returned, due to the fact that families who have chil-

dren in school do not want to interrupt their childrens education as the Sinhala stream school is no longer func-

tional.

Following their return to the area, the Sinhalese attempted to claim back their land and had complained to the

GS that they had not sold their land but that it had been taken from them by force. This in turn led to the DS of

Kuchchaveli writing a letter dated September 16th which was put up at the Mosque to all the current occupants

of the land to produce documents detailing their proof of ownership and to halt any developments on the land.

Muslim and Tamil families handed over their documents and inquiries were made. The Provincial Land Commis-

sioner (PLC) looked at the land documents detailing proof of ownership and then reported back to the DS who

subsequently stated that all deeds and permits of the current owners of the land should be cancelled. In effect

this meant that according to the PLC, the transfer of ownership of properties signed off by the previous DS are

illegal. In response, 23 Muslim and Tamil families filed action in the Trincomalee District Court on the 23rd

of Oc-tober. The Judge issued a stay order on the DSs decision. The Muslim and Tamil occupants of the land com-

plained that the Sinhalese continued to attempt to enter the land and that the police refused to do anything,

stating that they did not known anything about the stay order. Subsequently, Muslim politicians had to get in-

volved to ensure that the police in Trincomalee followed the stay order.

The Sinhalese are very confident that they will be able to reclaim their land. They appear to have significant po-

litical backing from the machinery of the State to which they alluded. They stated that the Government helped

them to return and has provided them assurances. They informed CPA that several politicians in the previous

government of President Rajapaksa encouraged them to return and facilitated their return. CPA was also in-

formed that the GA of Trincomalee is in close contact

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Land in the Eastern Province- Politics, Policy and Conflict

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